By now some of you may have heard of the Kentucky judge who is quitting rather than award custody of adopted kids to gay parents.
It’s reminiscent of Kim Davis, the Kentucky court clerk who in 2015 refused to allow her name on marriage licenses for same sex couples -- but was willing to let such licenses be issued under someone else’s authority. She ended up getting a meeting with Pope Francis, thanks to a sympathetic apostolic nuncio to the United States.
Here’s what the Washington Post had on this latest story -- the latest Kentucky court drama, that is:
A Kentucky judge who stirred controversy earlier this year by refusing to hear adoption cases involving gay parents says he plans to resign in hopes of quashing an ethics inquiry by a state judicial panel.
Judge W. Mitchell Nance told the Kentucky Judicial Conduct Commission in a memo made public Wednesday that he would resign effective Dec. 16 rather than fight the commission’s charges that he violated ethical rules. He also sent a resignation letter to Kentucky Gov. Matt Bevin (R), the Associated Press reported.
Nance was facing sanctions that included possible removal from the bench.
The first comment in the story is from the opposition.
“Judge Nance must have seen the writing on the wall,” said LGBT advocate Chris Hartman, whose organization, the Fairness Campaign, helped bring a complaint against the judge. “I hope this sends a message to judges across the country that if their conscience conflicts with their duty, they must leave the bench.”
Kentucky law permits same-sex couples to adopt children.
As tmatt has written (but this is an angle often ignored in a lot of coverage), the main players in these dramas often try to engineer compromises by which the petitioners can get what they want, but without the Christian official’s cooperation. In other words, these officials openly admit that they have a conflict of interest in cases of this kind.
I will note that the Lexington Herald-Leader editorialized several months ago on why a Davis-style solution wouldn’t work with a family judge like Nance. In a more recent story, it put a quote by the LGBTQ activist high up in the story, but before that included some explanation of how Nance tried to work out a compromise.
Nance issued an order in April requiring lawyers to notify him if they had an adoption case involving a gay parent or same-sex couple so he could recuse himself from the case.
Nance, family court judge for Barren and Metcalfe counties, said his religious convictions prevented him from handling such adoptions because adoption of a child by a “practicing homosexual” would never be in the child’s best interest. ...
(Nance’s lawyers) defended his actions, saying that Nance was trying to do the right thing by recusing himself.
The basis for Nance’s position is a sincere religious belief that “the divinely created order of nature is that each human being has a male parent and a female parent,” and therefore, the only adoption that serves a child’s best interest would be one that would create the chance for the child to have a parent of each gender, the attorneys said.
Nance’s decision not to handle adoption cases involving gay parents would have led to impartial decisions and made sure that all families had a fair opportunity for adoption, his response said.
The major question that went unanswered in all the coverage: What was going through Nance’s mind? Even though Davis worked in eastern Kentucky whereas Nance is situation in the south-central part of the state, certainly Nance has been following Davis’ life for the past three years. He must have known that legally, he didn’t have a prayer of being able to hold such views, yet stay in office.
So why did he state last spring that he’d not do gay adoptions? In an earlier article, the Louisville Courier-Journal shed little light on Nance. We’re talking basics such as what church he attends; what denomination he’s part of; where these beliefs come from and whether member of his church support him are left out.
But at least this piece got actual quotes from the judge.
In a phone interview, Judge Nance declined to respond to criticism of his order.
"I stand behind the law I have cited, the matter of conscience I addressed and the decision I have made."
He said he doesn't know of any gay adoptive parents and said he was unable to cite any research that shows they make less of a parent than heterosexuals.
Asked if judges who oppose capital punishment should be able to recuse themselves from death penalty cases, he said, "I really have not thought about that enough to given an intelligent answer."
Nance’s convictions weren’t just on homosexuality. The Courier-Journal added that he applied the same standards to divorce cases.
Lawyers say Nance is highly religious and opposed to divorce. Even in uncontested divorces involving no children, he makes the parties appear in court, offers them condolences on the demise of their marriage and makes them explain why it didn’t work out.
Attorneys say he also asked divorce litigants where they go to church and whether they are a true believer.
Nance acknowledged that he has written a rule requiring the appearance of parties, even in uncontested divorces, and that he offers condolences to them "because something very joyful has turned out to be a matter of grief."
He said he may have asked litigants about their church and religious beliefs, but he said he doesn't do it as a matter of routine.
One reason why Nance may have resigned was to spare the state the ongoing mess like that of the Davis case, which is still dragging on in federal court because of a dispute as to who should pay the court costs for the couples who sued her.
But nothing tells readers the details of why this judge waded into this mess in the first place, knowing the inevitable outcome. And I see no evidence that anyone in the media has knocked themselves out doing any stories on this judge, his background and his convictions.
Is it because no one’s talking or the powers that be at various media don’t think Nance’s beliefs are worth a story?
I found one exception: A story in May by the Christian Science Monitor explaining how officials like Nance are trying to create precedent for allowing people of faith to recuse themselves from certain actions while keeping their jobs. Once again, they are trying to apply conflict of interest concepts to clashes linked to religious convictions. It said:
“It's preemptive in nature,” Nance said after issuing his April 27 order. “I wanted to preempt there from being any uncertainty if the situation arose.” No one would be delayed or denied access to the services of the court, officials said, since the jurisdiction’s other family judge would now be assigned such cases.
But with an ethics investigation hovering over him, Nance found his solution unworkable. So for now, religious conscience claims are losing out to other realities, with secular conflicts of interest being recognized, but not sacred conflicts of interest.
Which is why so much rests on the case before the Supreme Court of Masterpiece Cakeshop v. Colorado Civil Rights Commission. Religious liberty cases of this kind are not going away, no matter which side the court comes down on. We've heard of the saying that all politics is local. In many cases, so are First Amendment Supreme Court cases.